Verdi v. City of New York

United States District Court, S.D. New York

January 22, 2018

MANUELE VERDI, individually and in his official capacity as the Assistant Principal of Publi School 24 “P.S. 24”, a public school under the auspices of the NEW YORK CITY DEPARTMENT OF EDUCATION, Plaintiff,v.THE CITY OF NEW YORK; THE NEW YORK CITY DEPARTMENT OF EDUCATION; CARMEN FARIÑA, both individually and in her official capacity as the Schools Chancellor within THE NEW YORK CITY DEPARTMENT OF EDUCATION; MELODIE MASHEL, both individually and within her official capacity as the Superintendent of Bronx School District 10, within the NEW YORK CITY DEPARTMENT OF EDUCATION; ELIZABETH ROSE, both individually and within her official capacity as the Deputy Schools Chancellor within the NEW YORK CITY DEPARTMENT OF EDUCATION; and STEVEN SCHWARTZ, both individually and within his official capacity as the Acting Principal of Public School 24, within the NEW YORK CITY DEPARTMENT OF EDUCATION, Defendants.

OPINION AND ORDER

VALERIE CAPRONI, UNITED STATES DISTRICT JUDGE

Plaintiff,
an Assistant Principal at a New York City public school,
brings a range of claims based on alleged retaliation he has
endured for his opposition to discriminatory practices at his
school. Defendants, which include the city's Department
of Education (“DOE”), two DOE officials, and two
fellow school administrators, move to dismiss the claims. For
the reasons stated below, Defendants' motion is granted
in part and denied in part. Plaintiff has sufficiently
alleged state law claims under New York's human rights
and civil service laws, has insufficiently alleged a §
1983 claim, and has abandoned his negligence claim. His Title
VI claim is inadequately pled, but the Court will grant him
leave to amend.

I.
BACKGROUND

Plaintiff's
allegations are laid out in a meandering 65-page complaint
that asserts there is race discrimination in the placement of
children into P.S. 24 in the Bronx. See First
Amended Complaint (“FAC”) [Dkt.
26].[1]
Although some of the allegations have the faint whiff of an
Oliver Stone-style conspiracy, Plaintiff, who is an Assistant
Principal at P.S. 24, has publicly complained that efforts
have been and are being made to keep poor and minority
children who live in the appropriate district out of P.S. 24,
and his advocacy for those children has resulted in his
getting crosswise with the school power structure. See,
e.g., FAC ¶¶ 41-57 [18-24]. The primary
players in this drama include the now-retired District 10
Superintendent (Defendant Mashel), the local Assemblyman
(Jeffrey Dinowitz), the interim and now-permanent Principal
of P.S. 24 (Defendant Schwartz), and the head of the
school's Parents' Association (Laura Moukas). The
Deputy Schools Chancellor (Defendant Rose) has a cameo
appearance. Despite the length of the Complaint, when all is
said and done, Plaintiff is complaining about three separate
incidents of alleged retaliation.

The
first incident began with a Parents' Association
(“P.A.”) meeting on October 21, 2015. During this
meeting, Plaintiff and local Assemblyman Jeffrey Dinowitz
exchanged angry words over the loss of the lease of the
school's annex.[2] The loss of that space was problematic as
it led to overcrowding in the school. Superintendent Mashel
was present at the meeting and was aware that Verdi and
Dinowitz had argued during the meeting. See FAC
¶¶ 27-32 [14-16].

Plaintiff
alleges that, on the following day, Mashel called P.S.
24's then-Principal Donna Connelly and directed her to
reprimand Plaintiff for his conduct at the meeting. Connelly
refused, and Mashel said, “This isn't over.”
Connelly decided to retire shortly thereafter because,
according to Plaintiff, she wished to avoid future
confrontations with Mashel and other officials. FAC
¶¶ 33-34 [16]. After Mashel's call to Connelly,
Mashel met with Dinowitz and others to discuss how to remove
Plaintiff from P.S. 24, id. ¶¶ 35-36
[16-17], and, on December 11, 2015, Mashel told the Acting
Principal, Andrea Feldman, that she had to find a way to
remove Plaintiff if she wanted to remain as Principal.
Id. ¶ 37 [17].

The
second incident involves P.S. 24's kindergarten
registration. At a public meeting in January 2016, Dinowitz
questioned the process that would be used to confirm
addresses of P.S. 24 kindergarten enrollees. As a result of
asserted concerns that out-of-district children would attempt
to register-Verdi asserts that there was no real concern
about out of district children and that the articulated
concern was a cover for bias against minority and low-income
students- Mashel, Feldman, and Rose agreed to allow
Dinowitz's chief of staff Randi Martos to be present
during the enrollment process. See FAC ¶¶
41-44 [18-20]. When enrollment actually occurred, Martos and
Laura Moukas, president of the P.A., were present to
“oversee” kindergarten registration. During the
process, they accessed confidential medical and academic
records of the prospective enrollees and required parents of
minority children to produce three identification documents
to register their children, rather than the two that were
required of other parents. See id. ¶ 52 [22].
Plaintiff wrote to the Schools Chancellor, Defendant
Fariña, and DOE's Special Commissioner of
Investigation regarding his concerns about the kindergarten
enrollment process. Id. ¶¶ 46-47 [20-21],
¶¶ 49-50 [21-22], ¶ 52 [22]. His complaint to
the Special Commissioner of Investigation led to an
investigation that validated certain of his
allegations.[3]See id. ¶¶ 82-92
[34-37].

According
to the Plaintiff, this second incident led to a meeting
between Mashel and Plaintiff. The meeting was initially
scheduled for April 6, 2016, but ultimately was held on May
4, 2016. See FAC ¶ 77 [24]. Plaintiff alleges
that the meeting was called to discipline him for his
opposition to the discriminatory enrollment scheme, but the
memorandum that documents the meeting makes no mention of
Plaintiff's opposition. See id. ¶¶ 76
[24], 81-83 [26-28]; Counseling Memorandum, May 23, 2016
[Dkt. 30-4].[4] Instead, the meeting focused on a
directive that Mashel had given to Plaintiff to have no
contact with Moukas's children, who attend P.S. 24, which
the Complaint appears to confirm.[5] FAC ¶¶ 77-79
[24-26]. According to the Plaintiff, during this meeting
Mashel ordered him to refrain from entering the P.S. 24 annex
(the location in which he had encountered the Moukas
children). Plaintiff alleges that this directive prevented
him from performing his job. Id. ¶ 80 [26]. It
is undisputed that Mashel followed up the meeting by placing
a memorandum in Plaintiff's file, confirming that he
should have no contact with Moukas's children.
Id. ¶¶ 81-85 [26-28]; Counseling
Memorandum.

The
third incident involves Feldman's successor,
current-Principal Steven Schwartz (allegedly Mashel's
protégé). According to Plaintiff, in early
October 2016, Schwartz radically altered Plaintiff's
duties and the resources available to him. Plaintiff
complains that Schwartz limited Plaintiff's communication
with parents, terminated his role as Special Education
District Representative, removed his computer access, removed
him from the office from which he had previously worked and
reassigned him to a book storage room, removed him from the
School Leadership Team, and assigned him to monitoring duty
of students without adequate assistance. See FAC
¶¶ 94-101 [37-40]. Plaintiff alleges that these
actions were intended to retaliate against him for his
complaints about discrimination and his whistleblowing to
DOE. Id. ¶ 102 [40-41].

Plaintiff
purports to assert eight convoluted and confusing causes of
action. The Court finds that there are, in fact, only five
causes of action alleged: retaliation claims under Title VI
of the Civil Rights Act based on Plaintiff's complaints
about discrimination against prospective students;
retaliation claims under the New York City Human Rights Law
(NYCHRL); a claim under 42 U.S.C. § 1983 for violation
of his First Amendment right to voice opposition to
discriminatory practices at the school; whistleblower claims
pursuant to New York State Civil Service Law §
75-b(1)(a); and claims for negligent training, supervision,
and retention of Mashel, Schwartz, and Feldman.[6]See FAC
¶¶ 105-190 [42-63].

II.
DISCUSSION

To
survive a motion to dismiss under Rule 12(b)(6), “a
complaint must allege sufficient facts, taken as true, to
state a plausible claim for relief.” Johnson v.
Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555-56 (2007)). “Although for the purposes of a motion
to dismiss we must take all of the factual allegations in the
complaint as true, we ‘are not bound to accept as true
a legal conclusion couched as a factual
allegation.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
“[T]o survive a motion under Rule 12(b)(6), a complaint
does not need to contain detailed or elaborate factual
allegations, but only allegations sufficient to raise an
entitlement to relief above the speculative level.”
Keiler v. Harlequin Enters., Ltd., 751 F.3d 64, 70
(2d Cir. 2014) (citation omitted). When considering a Rule
12(b)(6) motion to dismiss, the Court accepts all factual
allegations in the pleadings as true and draws all reasonable
inferences in the light most favorable to the plaintiff.
See Gibbons v. Malone, 703 F.3d 595, 599 (2d Cir.
2013) (citation omitted).

A.
Plaintiff's Title VI Retaliation Claim is Dismissed
Without Prejudice for Failure To Allege Adequately a
Connection to Federal Funds

“Title
VI prohibits intentional discrimination based on race in any
program that receives federal funding.” DT v.
Somers Cent. Sch. Dist., 348 Fed.Appx. 697, 699 (2d Cir.
2009) (citing 42 U.S.C. § 2000d; Alexander v.
Sandoval,532 U.S. 275, 282-83 (2001); Tolbert v.
Queens Coll.,242 F.3d 58, 69 (2d Cir. 2001)).
Defendants move to dismiss Plaintiff's Title VI claim on
the grounds that individuals cannot be liable under Title VI;
that Plaintiff has failed to plead sufficient facts to show
that he suffered an adverse employment action that was linked
to protected activities; and that Plaintiff has not pled that
the primary objective of any federal funds provided to the
DOE was to benefit employment, which they argue is required
for his Title VI retaliation claim. See MTD at 8-11;
Reply Memorandum of Law in Further Support of Defendants'
Motion to Dismiss (“MTD Reply”) [Dkt. 38] at 2-4.

2.
Plaintiff Has Sufficiently Alleged Adverse Actions and
Causation to State a Title VI Retaliation Claim

While
the Second Circuit has had minimal occasion to address
retaliation claims under Title VI, courts in this District
have recognized that such a cause of action exists. A Title
VI retaliation claim must “plausibly allege (1)
participation in a protected activity known to the
defendants; (2) adverse action by the defendants against the
plaintiff; and (3) a causal connection between the
plaintiff's protect[ed] activity and defendants'
adverse action.” Diaz v. City Univ. ofNew
York, No. 15CIV1319 PAC MHD, 2016 WL 958684, at *2
(S.D.N.Y. Mar. 8, 2016) (quoting Williams v. CUNY,
No. 13 cv 1055 (CBA), 2014 WL 4207112, at *11 (E.D.N.Y.
2014)) (internal quotation marks omitted). See also
Koumantaros v. City Univ. of New York, No. 03 CIV10170
GEL, 2007 WL 840115, at *10 (S.D.N.Y. Mar. 19, 2007) (citing
Davis v. Halpern,768 F.Supp. 968, 985 (E.D.N.Y.
1991)). “An ‘adverse action' in the context
of a retaliation claim is an action that well might have
dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Williams, 2014 WL
4207112, at *11 (quoting BurlingtonN. &
Santa Fe Ry. Co. v. White,548 U.S. 53, 67-68 (2006))
(internal quotation marks omitted). “Plaintiff may show
a causal connection either (1) indirectly, by presenting
evidence of temporal proximity between the protected activity
and adverse action, or through other evidence such as
different treatment of similarly situated [individuals], or
(2) directly, through evidence of retaliatory animus directed
against . . . plaintiff by the defendant.”
Koumantaros, 2007 WL 840115, at *10 (internal
quotation marks and citation omitted).

The
Court understands Plaintiff's FAC to allege three
incidents of retaliation:[7] Mashel's efforts to discipline and
fire him after his argument with Dinowitz at the October 2015
meeting; the May 4, 2016 meeting with Mashel and her
placement of a memorandum in his file; and Schwartz's
alteration of Plaintiff's duties and
resources.[8]

The
Court finds that the first incident of retaliation
sufficiently states a claim. Plaintiff alleges that Mashel
was determined to discipline and dismiss Plaintiff. Causation
is sufficiently alleged as Mashel's efforts began
immediately after the October 2015 meeting. Although no
discipline or dismissal ever occurred, a jury could find that
a superintendent's threats to discipline and remove an
outspoken dissenter would dissuade a reasonable employee from
objecting to discrimination.

The
second incident fails to state a claim. While the FAC makes
it difficult to ascertain the timing of the scheduling of the
Mashel meeting relative to the allegedly inciting events, the
undisputed subject matter of the meeting and the contents of
the memorandum documenting the meeting undercut
Plaintiff's assertion that any reasonable person would
interpret it as having any connection to his protected
activities. According to the FAC, the meeting focused not on
the issues Plaintiff opposed but on his purported violation
of a directive that he not interact with the Moukas children.
Although Plaintiff argues that Moukas's close
relationship to and alliance with Mashel allows the Court to
infer a nefarious purpose (and, as noted supra in
note 5, the situation is odd), his assertions read more like
a conspiracy theory than a plausible allegation. Although he
asserts that during the meeting Mashel forbade him from
entering the annex, in effect hindering his ability to do his
job, the counseling memorandum that was placed in his file
that documented the meeting merely directed him to avoid
contact with Moukas's children and said nothing about his
authority to enter the annex. See Counseling
Memorandum. The counseling memorandum also explicitly says
that it “is not disciplinary in any manner and cannot
be used in any action against an employee except to prove
notice if the employee denies notice.”[9]Id.
Counseling memoranda do not constitute adverse employment
actions in retaliation claims under Title VII, which, as
noted above, are used as precedent when dealing with similar
Title VI claims. See, e.g., Tepperwien v.
Entergy Nuclear Operations, Inc., 663 F.3d 556, 570 (2d
Cir. 2011). As to this particular counseling memorandum, no
reasonable worker would be dissuaded from making a charge of
discrimination by a counseling meeting and a resulting
memorandum that, explicitly on its face, is not disciplinary,
cannot be used against the employee beyond proving notice,
and appears to be entirely disconnected from Plaintiff's
whistleblowing activities. Although Plaintiff contends that
this letter has been made part of his personnel file and
“constitute[s] retributive action, ” FAC ¶
83 [27], the Court finds that the meeting and subsequent
memorandum do not support a retaliation claim under Title VI.

In
contrast, the Court finds that the third incident does state
a claim of retaliation. Plaintiff has alleged that Schwartz
radically changed Plaintiff's duties and resources in
approximately October 2016. These changes followed the
DOE's investigation of the school's kindergarten
registration, which Plaintiff's actions initiated, and
whose August 29, 2016, report allegedly led to Mashel's
retirement and Feldman's transfer. The Court finds that
these broad changes to Plaintiff's responsibilities and
resources are material to his role and could be viewed as a
demotion; a fact finder could easily conclude that demoting
an employee who complains about discrimination would dissuade
reasonable employees from following suit. Additionally, the
Court finds that causation is sufficiently alleged given the
relationship alleged between Mashel and Schwartz, and the
short time period between the conclusion of the investigation
that Plaintiff's reporting spurred and the alterations to
his position at P.S. 24.

Section
2000d-3 of Title 42, United States Code, provides:
“Nothing contained in [Title VI] shall be construed to
authorize action under [Title VI] by any department or agency
with respect to any employment practice of any employer . . .
except where a primary objective of the Federal financial
assistance is to provide employment.” In effect,
“[f]or a claimant to recover under Title VI against an
employer for discriminatory employment practices, a threshold
requirement is that the employer be the recipient of federal
funds aimed primarily at providing employment.”
Ass'n Against Discrimination in Employment, Inc. v.
City of Bridgeport, 647 F.2d 256, 276 (2d Cir. 1981)
(citations omitted). It is unsettled, however, whether
retaliation claims affecting employment-in which an
individual who voices concerns about discrimination against
others is retaliated against with respect to his or her
employment-should be treated the same as straight retaliation
for employment discrimination claims, in which the underlying
protected activity is a complaint that the employee was him-
or herself discriminated against.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Although
the Second Circuit has yet to consider this question, a few
district courts have. Hickey v. Myers, for example,
involved a college dean who had been removed from his
position for opposing an allegedly racially-discriminatory
admissions policy. No. 09-CV-01307, 2010 WL 786459, at *1-2
(N.D.N.Y. Mar. 2, 2010). The Hickey court rejected
the defendant's argument that the plaintiff must prove
that a primary objective of the school's federal funding
was to provide employment: “Plaintiff does not allege
employment discrimination but instead alleges that he was
retaliated against because he spoke ...

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